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Brexit in Times of Caution


Brexit and the World

We have become so used to Nanny in Brussels that we have become infantilized, incapable of imagining an independent future. We used to run the biggest empire the world has ever seen, and with a much smaller domestic population and a relatively tiny civil service. Are we really unable to do trade deals?”- Boris Johnson in his piece for the Telegraph UK campaigning for Brexit.

united kingdom exit from europe relative image

I think this line aptly summarises one of the Remain campaigns fundamental fears- uncertainty as a result of the British EU referendum.  But uncertainty as a result of a decision doesn’t necessarily mean that the decision itself is wrong.  How else is the world supposed to grow and evolve if extraordinary and unprecedented decisions aren’t taken at some point?

 Yes the markets have crashed and the pound is at its lowest value in years but it seems to be more of a knee jerk reaction based on fear of  the unknown. Economists and experts can get it wrong from time to time, they certainly failed to predict the 2008 recession and its aftermath.

A market unfriendly democratic vote also does not necessarily lead to eternal doom. Drawing a parallel from our experiences in India, didn’t the outcome of the 2004 elections send the markets to a tumble and lead to what was famously then referred to as Black Monday?  But India got over it and so will Britain. There is no reason why a strong economy like the British economy cannot learn to live on its own.

Brexit and India

For now though the world and India will have a live in the consequences of a post Brexit world which contrary to the relentless media scare mongering may not be such a bad proposition.

Early analysis by CUTS International indicates that Brexit will result in trade creation for India. No longer will India need to bow down to the pressures of the EU. Britain and EU will both compete for trading with India, which will give India an advantage in negotiations.

While it will certainly impact Indian companies who export to the UK including pharma companies like Lupin and Cipla. The impact is expected to be minimal. Unichem chief PA Mody notes here that Brexit’s decision will not have a major impact on Indian pharma as several Indian companies sell directly into different EU countries.

As far as Indian immigrants are concerned, far from this being a xenophobic vote, the vote may actually aid skilled Indians to get jobs in the UK. Indeed as Boris Johnson noted in the ITV debate in the run up to the referendum, the exit would actually put an end to discrimination against 92% of the world’s population who are subject to greater control and scrutiny to work in the UK because of regulations in the EU which required preference to be given to EU nationals who were not very skilled and came into the UK in certain cases even without job offers.

Brexit and IP

It is largely expected that the Brexit will have no immediate impact on IP given the transitional period of two years before Article 50 of the Lisbon Treaty is invoked.  Even once it is invoked, UK will have bigger ticket items on its negotiating list than IP to sort out initially. As Burges Salmon partner, Jeremy Dickenson notes here, it will be a long time before there is any certainty as to the full repercussions on IP.

Analysis by law firms in the UK indicate that the implications of Brexit on IP will largely depend on the model UK adopts for it secession.

Emerging trends indicate that:

The European patent system will remain unaffected since membership to the European patent system is exclusive of its EU membership status. However, it is likely that UK will not participate in the unitary patent system, which seeks to grant uniform patent protection throughout the European Union based on a single application.

The situation will be slightly different as far as community trademarks and designs are concerned. Currently registration of a trademark with the EU IPO grants registration across member states without having to apply separately. This will change, separate applications for registration will be required to be made to the EU and UK.  UK courts too will no longer be able to grant EU injunctive relief for infringement of community rights. With respect to existing registrations, it is largely expected that processes will be put in place to safeguard rights and put in place a system to allow conversion to a UK right from the original application date.

Since copyrights are largely territorial in nature, the exit is not expected to have impact since copyright law largely differs across the EU countries. Unless UK radically transforms its copyright law post exit, which is unlikely, this area is unlikely to witness much impact.

A number of IP contracts will have to be renegotiated to amend their territorial application. Further, while UK will not be obliged to implement any of the EU directives on IP related rights  they will have the freedom to adopt them into their own law.

Over a period of time divergence will emerge between UK IP law and the rest of the EU since UK courts would no longer have to interpret UK law in light of EU rules. They will have greater freedom in interpreting and implementing IP law.

 At this stage everything on life beyond Brexit is moot and speculative. Yes the uncoupling will be difficult but my no means impossible and who is to say whether the UK will be better or worse for it. Whichever way it goes, it is going to take some time before we say the real long-term effects of Brexit.

 Image from here

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